1.1 The Environmental Bureau of Investigation

The Environmental Bureau of Investigation (EBI), a division of Energy Probe Research Foundation, was established to investigate pollution crimes. In response to requests from local citizens to help stop pollution in their communities, EBI staff and volunteers have meticulously and scientifically investigated pollution concerns, launched campaigns to publicize problems, alerted government regulators, and when necessary, launched private prosecutions. By providing investigative and technical resources, EBI has empowered the public to participate in the protection of community resources. EBI believes that it is imperative to expose pollution crimes and is committed to supporting people who take action to bring wrongdoers to account.

EBI’s first project began in 1996, under the guidance of executive director Mark Mattson (who is now Lake Ontario’s Waterkeeper). At that time, EBI assisted Janet Fletcher, an environmental activist and a member of EBI’s advisory board, and the Sierra Legal Defence Fund (now called Ecojustice) in investigating a closed, city-owned landfill in Kingston, Ontario, that was leaching contaminants into the Cataraqui River. In 1998, the city was convicted on seven counts of violating the federal Fisheries Act. The case went to the Ontario Court of Appeal, which upheld three of the seven convictions in 2003. In 2005, the Supreme Court of Canada turned down the City of Kingston’s request to appeal its convictions. Unfortunately, the city has continued to resist fully cleaning up the site. Despite the city’s defiance, a number of positive impacts have emerged from the prosecution. In March 1997, the day after the charges were laid against it for contaminating the river, the city sent earthmoving equipment to begin cleaning up the site. Kingston has also begun cleaning up other sites, including a notorious coal tar site. The Kingston case is a precedent-setting one for Ontario and should make it easier in future to prosecute polluters and enforce environmental laws. Under the federal Fisheries Act, establishing a pollutant as a “deleterious substance” is enough to earn a conviction, which means prosecutors didn’t have to prove that the contaminants pouring into the Cataraqui Riverwere toxic to the fish in that river; all they had to do was show that the contaminants concerned were toxic to fish.

In 1997, EBI’s Janet Fletcher and the Sierra Legal Defence Fund laid eight charges against the Ontario government under the federal Fisheries Act and the Ontario Water Resources Act for allowing toxic substances, including arsenic and other heavy metals, to pour out of the abandoned Deloro Mine site into the Moira River and its tributary, Young’s Creek. The charges were the first ever brought by private citizens against the province. In 1998, Thomas Adams, another EBI advisory panel member, laid additional charges against the province for radioactive pollution. In 2001, the province was acquitted based on the defence that it had exercised due diligence in planning to remediate the site. The prosecution did succeed in prompting the Ontario government to take some long overdue protective actions, such as posting signs and fencing the highly contaminated site to protect the public, as well as deer and other game, from the arsenic and radioactive pollution. In December 2004, the Ontario Ministry of the Environment released its plan for a cleanup, announcing it would spend another $30 to $40 million on cleaning up the Deloro site.

In 1999, Lynda Lukasik, an environmentalist in Hamilton, Ontario, laid charges against the City of Hamilton under the Environmental Protection Act and the federal Fisheries Act for discharging polychlorinated biphenyls (PCBs) and toxic ammonia into Red Hill Creek from a city dump. EBI helped Lukasik by gathering evidence, including pollution samples and documents, and the Sierra Legal Defence Fund provided legal representation. The City of Hamilton had apparently known about the problem of leachate leaking from the dump into the creek for years. After the charges were laid, the Ministry of the Environment told the city that it “was required to take the necessary remedial measures to eliminate the seepage of wastes into the Creek,” and the city began a remediation plan. The private prosecution and a separate charge laid by the Ministry of the Environment resulted in fines totalling $450,000 – the largest fines for an environmental crime ever levied against a municipality in Canada.

In 2001, a brief prepared by EBI and the Petitcodiac Riverkeeper prompted Environment Canada to launch an investigation of an old landfill site in Moncton, New Brunswick. The investigation was launched in order to determine whether leachate leaking from the 32-year-old site was harming the Petitcodiac River. This led to charges being laid against the City of Moncton and related engineers in 2002. In 2003, the city pleaded guilty to violating the Fisheries Act and was fined a total of $35,000. A remediation plan costing between $500,000 and $700,000 was also ordered for the site. In 2004, charges against the engineering consulting firm hired to close the site were dismissed on a technicality. The Crown successfully appealed this decision and a new trial was ordered. In 2006, the firm and its chief engineer were found guilty of violating the Fisheries Act and were ordered to pay $28,000 in penalties.

Before charges were laid against the City of Kingston, leading lawyers and academics generally agreed that environmental groups would be hard-pressed to acquire the meticulous expertise and credibility required to win cases in court. Instead, they said, environmentalists should try to influence governments to better manage pollution. As a result, few environmental groups ever tried the criminal courts, and when they did, they rarely expected to succeed. Now that a precedent has been set that shows environmentalists can stop pollution through investigations and prosecutions, EBI hopes more citizens will keep these options in mind as they seek to protect the environment.